18274 Federal Register / Vol. 72, No. 69 / Wednesday, April 11, 2007 / Notices 

1Respondent’s other evidence likewise does not 

create a factual dispute as to whether its state 

controlled substance registration has been 

suspended. 

Resp. Opp., and a ‘‘Rescheduled Second 

Pre-Hearing Conference Order.’’ Ex. 3 to 

Resp. Opp. 

The ALJ granted the Government’s 

motion. The ALJ found that there was 

no material factual dispute regarding 

whether Respondent currently has 

authority under Massachusetts law to 

handle controlled substances. ALJ Dec. 

at 3. The ALJ specifically rejected 

Respondent’s contention that its state 

controlled substance registration had 

not been suspended, but rather, was 

being held in escrow by the 

Massachusetts Board pending a final 

decision. Id. Relatedly, the ALJ also 

dismissed Respondent’s argument that 

the State never implemented the 

summary suspension order, reasoning 

that ‘‘whether the license is suspended 

pending a hearing on the merits, or is 

held in escrow,’’ is irrelevant, because 

‘‘[i]n either event, Respondent is 

without authority to handle controlled 

substances in Massachusetts.’’ Id. The 

ALJ thus held that Respondent is not 

entitled to maintain its DEA registration 

and recommended that I revoke 

Respondent’s registration. The ALJ then 

forwarded the record to me for final 

agency action. 

Having considered the record as a 

whole, I adopt the ALJ’s holding that 

Respondent is currently without 

authority to handle controlled 

substances in Massachusetts and is 

therefore not entitled to maintain its 

DEA registration. Here, the State’s 

‘‘Final Order of Summary Suspension,’’

which is signed by the Board’s 

President, clearly ordered the 

suspension, effective October 23, 2005, 

of Respondent’s state controlled 

substance registration ‘‘pending a final 

decision on the merits.’’

Respondent’s assertion that the State 

‘‘has never executed or implemented the 

Final Order of Summary Suspension’’

does not raise a genuine issue of fact 

that requires a hearing to resolve. 

Respondent’s evidence—i.e., a letter to 

the Board’s lawyer discussing an 

agreement to surrender its state 

registration to be held in escrow 

pending a final decision—does not 

create a factual dispute as to whether 

Respondent’s state registration has been 

suspended. As a leading authority 

explains, ‘‘evidence in opposition to the 

motion that is clearly without any force 

is insufficient to raise a genuine issue.’’

Charles Allen Wright, et al., Federal 

Practice and Procedure section 2727 

(3d. ed. 2006).1 In short, this letter 

contains nothing that refutes the 

Government’s assertion that 

Respondent’s state controlled substance 

registration has been suspended. 

Under the Controlled Substances Act 

(CSA), it is irrelevant that Respondent’s 

state registration is being held in escrow 

pending state proceedings. Under the 

Act, a practitioner must be currently 

authorized to handle controlled 

substances in ‘‘the jurisdiction in which 

[it] practices’’ in order to maintain its 

DEA registration. See 21 U.S.C. 802(21) 

(‘‘[t]he term ‘practitioner’ means a * * * 

pharmacy * * * licensed, registered, or 

otherwise permitted, by * * * the 

jurisdiction in which [it] practices 

* * * to * * * dispense * * * a 

controlled substance in the course of 

professional practice’’). See also id. 

section 823(f) (‘‘The Attorney General 

shall register practitioners * * * if the 

applicant is authorized to dispense 

* * * controlled substances under the 

laws of the State in which [it] 

practices.’’). 

Furthermore, in section 304, Congress 

expressly authorized the revocation of a 

DEA registration issued to a registrant 

whose ‘‘State license or registration [has 

been] suspended * * * by competent 

State authority and is no longer 

authorized by State law to engage in the 

* * * dispensing of controlled 

substances.’’ Id. section 824(a)(3). By 

definition, a suspension is of a finite 

duration. See Merriam-Webster’s 

Collegiate Dictionary 1187 (10th ed. 

1998) (defining ‘‘suspend’’ as ‘‘to debar 

temporarily from a privilege 

* * * or function’’). Under the CSA, it 

does not matter whether the suspension 

is for a fixed term or for a duration 

which has yet to be determined because 

it is continuing pending the outcome of 

a state proceeding. Rather, what 

matters—as DEA has repeatedly held—

is whether Respondent is without 

authority under Massachusetts law to 

dispense a controlled substance. See 

Oakland Medical Pharmacy, 71 FR 

50100, 50,102 (2006) (‘‘a registrant may 

not hold a DEA registration if it is 

without appropriate authority under the 

laws of the state in which it does 

business’’); Accord Rx Network of South 

Florida, LLC, 69 FR 62,093 (2004); 

Wingfield Drugs, Inc., 52 FR 27,070 

(1987). 

Because the State suspended its 

controlled substances registration, 

Respondent clearly lacks authority 

under Massachusetts law to handle 

controlled substances. Therefore, it is 

not entitled to maintain its DEA 

registration. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) & 824(a), as well as 

28 CFR 0.100(b) and 0.104, I hereby 

order that DEA Certificate of 

Registration, AB2802468, issued to 

Bourne Pharmacy, Inc., be and it hereby 

is, revoked. I further order that any 

pending applications for renewal or 

modification of such registration be, and 

they hereby are, denied. This order is 

effective May 11, 2007. 

Dated: March 30, 2007. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. E7–6760 Filed 4–10–07; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 06–58] 

Piyush V. Patel, M.D.; Revocation of 

Registration 

On May 9, 2006, the Deputy Assistant 

Administrator, Office of Diversion 

Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Piyush V. Patel, M.D. 

(Respondent) of Midland, Texas. The 

Show Cause Order proposed the 

revocation of Respondent’s DEA 

Certificate of Registration, AP1614800, 

as a practitioner, on the ground that 

Respondent’s license to practice 

medicine in the State of Texas had been 

revoked, and that Respondent was 

therefore ‘‘without authority to handle 

controlled substances in Texas, the State 

in which [he] practices.’’ Show Cause 

Order at 1. The Show Cause Order also 

informed Respondent of his right to 

request a hearing. 

Respondent, acting pro se, filed a 

timely request for a hearing; the matter 

was assigned to Administrative Law 

Judge (ALJ) Mary Ellen Bittner. In that 

request, Respondent stated that he was 

currently incarcerated and requested 

that the hearing be delayed until after 

his release on April 7, 2007. Respondent 

also indicated that he was not currently 

licensed by the Texas State Board of 

Medical Examiners. 

On June 21, 2006, the Government 

moved for summary disposition on the 

ground that Respondent was ‘‘not 

currently authorized to engage in the 

active practice of medicine or to handle 

controlled substances in Texas.’’ Mot. 

for Summary Disp. at 2. In support of its 

motion, the Government attached an 

‘‘Agreed Order’’ (dated August 26, 2005) 

which Respondent had entered into 

with the Texas State Board of Medical 


cprice-sewell on PRODPC61 with NOTICES
Federal Register / Vol. 72, No. 69 / Wednesday, April 11, 2007 / Notices 18275 

1Under the Administrative Procedure Act, 

‘‘[a]gencies may take official notice of facts at any 

stage in a proceeding—even in the final decision.’’

Attorney General’s Manual on the Administrative 

Procedure Act 80 (1946) ( Wm. W. Gaunt & Sons, 

Inc., reprint 1979). In accordance with the Act, 

Respondent may ‘‘show to the contrary’’ by filing 

a request for reconsideration which includes 

supporting documentation within fifteen days of 

receipt of this order. 

2The expiration date of Respondent’s DEA 

registration is March 31, 2008. 

Examiners. Under the order, 

Respondent’s Texas medical license was 

revoked. 

Thereafter, on July 13, 2006, the ALJ 

denied Respondent’s request to stay the 

hearing until after his release from 

prison. ALJ Dec. at 2. The ALJ further 

ordered that Respondent file a response 

to the Government’s motion by August 

3, 2006. Respondent, however, failed to 

do so. 

Thereafter, the ALJ granted the 

Government’s motion. The ALJ noted 

that Respondent ‘‘acknowledges that his 

license to practice medicine in Texas is 

revoked, and will remain revoked at 

least until his release from prison on 

April 7, 2007.’’ Id. As this material fact 

was undisputed, the ALJ held that 

because ‘‘Respondent lacks state 

authority, he is not entitled to a DEA 

registration in Texas,’’ and therefore 

recommended that Respondent’s 

registration be revoked. Id. at 2–3. The 

ALJ then forwarded the record to me for 

final agency action. 

Having considered the record as a 

whole, I adopt the ALJ’s 

recommendation that Respondent’s 

registration be revoked. But in doing so, 

I decline to adopt the ALJ’s reasoning to 

the extent it relies solely on the Texas 

State Board of Medical Examiner’s 

revocation of Respondent’s medical 

license. Under Texas law, a practitioner 

must obtain a separate state registration 

to dispense a controlled substance. 

Texas Health & Safety Code § 481.061. 

The record, however, contains no 

evidence regarding the status of 

Respondent’s state registration. 

Therefore, in accordance with 5 

U.S.C. 556(e), I take official notice of the 

fact that according to the Texas 

Department of Public Safety’s 

Controlled Substances Registration 

verification search page, Respondent is 

not currently registered to dispense 

controlled substances in the State.1

Under the Controlled Substances Act 

(CSA), a practitioner must be currently 

authorized to handle controlled 

substances in ‘‘the jurisdiction in which 

he practices’’ in order to maintain a 

DEA registration. See 21 U.S.C. 802(21) 

(‘‘[t]he term ‘practitioner’ means a 

physician * * * licensed, registered, or 

otherwise permitted, by * * * the 

jurisdiction in which he practices * * * 

to distribute, dispense, [or] administer 

* * * a controlled substance in the 

course of professional practice’’). See 

also id. section 823(f) (‘‘The Attorney 

General shall register practitioners 

* * * if the applicant is authorized to 

dispense * * * controlled substances 

under the laws of the State in which he 

practices.’’). DEA has held repeatedly 

that the CSA requires the revocation of 

a registration issued to a practitioner 

who no longer possesses authority 

under state law to handle controlled 

substances. See Sheran Arden Yeates, 

71 FR 39130, 39131 (2006); Dominick A. 

Ricci, 58 FR 51104, 51105 (1993); Bobby 

Watts, 53 FR 11919, 11920 (1988). See 

also 21 U.S.C. 824(a)(3) (authorizing the 

revocation of a registration ‘‘upon a 

finding that the registrant * * * has had 

his State license or registration 

suspended [or] revoked * * * and is no 

longer authorized by State law to engage 

in the * * * distribution [or] dispensing 

of controlled substances’’). Therefore, 

Respondent’s DEA registration must be 

revoked.2

Order 

Accordingly, pursuant to the 

authority vested in me by 21 U.S.C. 

823(f) & 824(a), as well as 28 CFR 

0.100(b) & 0.104, I hereby order that 

DEA Certificate of Registration, 

AP1614800, issued to Piyush V. Patel, 

M.D., be, and it hereby is, revoked. I 

further order that any pending 

applications for renewal or modification 

of such registration be, and they hereby 

are, denied. This order is effective May 

11, 2007. 

Dated: March 30, 2007. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. E7–6761 Filed 4–10–07; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 05–8] 

Rick’s Picks, L.L.C.; Revocation of 

Registration 

On October 7, 2004, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Rick’s Picks, L.L.C. 

(Respondent), of Moore, Oklahoma. The 

Show Cause Order proposed the 

revocation of Respondent’s DEA 

Certificate of Registration, 003949RPY, 

as a distributor of list I chemicals, on 

the ground that its continued 

registration was inconsistent with the 

public interest. Show Cause Order at 1 

(citing 21 U.S.C. 823(h)). 

The Show Cause Order incorporated 

the allegations of a show cause order 

which was initiated by the Oklahoma 

State Bureau of Narcotics and 

Dangerous Drugs Control; the latter 

order proposed the denial of 

Respondent’s application for a state 

registration to distribute 

pseudoephedrine products that are 

Schedule V drugs under State law, as 

well as the revocation of Respondent’s 

state registration to distribute 

pseudoephedrine products which are 

not scheduled under state law. Id. at 2. 

Specifically, the state show cause order 

alleged that Respondent and its owner, 

Rick D. Fowler, ‘‘have a history of 

selling very large amounts of 

pseudoephedrine under suspicious and 

questionable circumstances, and with 

great negligence and reckless disregard 

for whether this product would be used 

in the clandestine manufacture of 

methamphetamine,’’ and that 

Respondent, and its owner, had engaged 

in this activity notwithstanding 

‘‘numerous warnings from . . . DEA 

officials that Respondent’s sales were 

fueling illicit methamphetamine 

laboratories.’’ Id. 

Relatedly, the State show cause order 

alleged that from January 2002 through 

April 2004, Respondent sold more than 

$ 2.2 million of Max Brand (for a total 

of nearly 10.5 million tablets), a product 

in which pseudoephedrine is the single 

active ingredient and which is the 

‘‘preferred choice [of] 

methamphetamine cooks.’’ Id. at 4–5. 

The state show cause order also alleged 

that Respondent had brokered the sale 

of approximately 400,000 

pseudoephedrine tablets for D & E 

Pharmaceutical. Id. at 5. The DEA Show 

Cause Order then repeated ten different 

allegations made in the state show cause 

order which asserted specific instances 

in which Respondent had sold 

extraordinary quantities of 

pseudoephedrine to convenience stores, 

gas stations and other non-traditional 

retailers of this product, and that 

Respondent had failed to report any of 

these transactions to DEA. Id. at 6–8. 

The State show cause order further 

alleged that pseudoephedrine 

distributed by Respondent had been 

found at twenty-two methamphetamine 

dumpsites. Id. at 8. Finally, the DEA 

Show Cause Order alleged that in 

November 2003, DEA had conducted an 

inspection of Respondent during which 

numerous recordkeeping violations 

were observed. Id. at 9. 

Respondent requested a hearing on 

the allegations. The matter was assigned 


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